BRIEF: School Choice in the States – April 2020

LEGISLATION

Missouri

Missouri legislators filed two education savings account bills, HB 2068 and SB 581, for students who are members of a household whose total annual income does not exceed two times the Missouri income standard used to qualify for free or reduced-price lunch. These two companion bills both aim to establish the “Show Me a Brighter Future Scholarship Fund.” HB 2068 passed the Rules committee in a 6-0 vote. The next step for HB 2068 is for it to be placed on the Missouri House of Representatives “perfection calendar.” Bills on the calendar may be scheduled for a third reading. SB 581 is also awaiting a scheduled date on the Missouri Senate  “perfection calendar.”

North Carolina

North Carolina introduced SB 704, which is the state’s response to COVID-19. Amongst many education initiatives, the state’s Opportunity Scholarship Program, a low-income voucher program, received the same testing waiver afforded to traditional public schools in the state. This testing waiver releases schools participating in the Opportunity Scholarship from the requirement they administer a national norm referenced test for the 2019–20 academic year. Additionally, the bill would allow scholarships to be carried forward from the spring semester 2019–20 year to a private school on or before October 1, 2020, if that school is closed for in-person instruction due to COVID-19 emergency. The bill was introduced April 28, 2020. At the time of writing it has passed both chambers.

Utah

The Utah legislature passed and Gov. Gary Herbert signed HB 4003, a bill creating a new multi-use tax-credit scholarship for students with special needs. This is Utah’s second educational choice program and makes Utah the 19th state to enact a tax-credit scholarship policy.

LITIGATION

Decision Watch List

We are continuing to watch for decisions from the U.S. Supreme Court in Espinoza v. Montana Dept of Revenue, Docket No. 18-1195—to answer the question whether it is unconstitutional under the Religion Clauses or Equal Protection Clause of the U.S. Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools—and from the federal First Circuit Court of Appeals in Carson v. Hasson, Jr, Docket No. 19-1746 – to answer the question whether excluding religious educational options from Maine’s town tuitioning system violates the Religion and Free Speech Clauses and the Equal Protection Clause of the U.S. Constitution when eligible families may use their publicly funded tuition assistance to attend nonreligious private schools.

We expect a decision from the U.S. Supreme Court in Espinoza any time between now and the end of June.

Tennessee

Children and families lost their right to access Tennessee’s new vouchers as a result of a court ruling on May 4. Here is background information on what happened.

On April 29, the Chancery Court of Davidson County in Nashville heard several motions regarding Metropolitan Govt of Nashville and Davidson County v. Tennessee Dept of Ed, Case No. 20-0143-II and Roxanne McEwen v. Gov Bill Lee, Case No. 20-0242-II. Both cases challenge Tennessee’s new voucher. The Court heard motions to dismiss the cases, for partial summary judgment, and for judgment on the pleadings. The Court also heard a motion to stay the voucher program for at least one year, which would require the 1400+ families who applied for the program to wait until the fall of 2021 to receive a voucher. Those representing parents and schools, including the Institute for Justice, Liberty Justice and Beacon Center argued this would be especially harmful for parents whose children are desperate for help right now.

Those against the program—the ACLU, Education Law Center (of New Jersey), Southern Poverty Law Center (of Mississippi), schools boards and county governments of Shelby County (Memphis) and Metro Nashville—alleged that the public schools in Memphis and Metro Nashville would lose too much money and would face disruption if children were to receive vouchers before the program were ruled unconstitutional.

On May 4, the court ruled that the Tennessee voucher is unconstitutional under that state constitution’s Home Rule provision, which restricts the legislature from enacting legislation targeted to a specific county. The court ruled that legislation restricted to two counties is also unconstitutional, and as a result, a voucher that does not apply generally throughout the state is unconstitutional. While we may disagree on legal grounds, we certainly agree that every family should have educational choice, regardless where they live. We expect this ruling to be appealed.

Ohio

On April 21, the Ohio Supreme Court received a motion from the State of Ohio in State ex rel. Citizens for Community Values v. Gov. Mike DeWine, Case No. 2020-0175, the case challenging the state’s refusal to issue EdChoice vouchers (a nickname for this Ohio-based program that is not affiliated with our organization) immediately after the program was expanded allegedly greater than the legislature intended. The State’s motion argues that the case is moot due to certain recent legislative actions, although the issues underlying the dispute have not been fully resolved at the legislative level. Decisions on this motion, and a motion for oral argument, are pending.

Nevada

On April 23, the Eighth Judicial District Court in Clark County heard motions for summary judgment regarding Flor Morency v. State of Nevada Dept of Education, Case No. A-19-800267-C, the case challenging Nevada’s elimination of the escalator clause in their tax-credit scholarship program. On May 5, the court ruled that Nevada’s legislature did not violate the constitution by failing to secure a supermajority vote when it eliminated the tax-credit scholarship program escalator clause, thereby freezing funding for the program. We expect the decision to be appealed.

Maryland

On April 15, the U.S. District Court for the Northern District of Maryland denied a motion to stay the litigation proceedings in Bethel Ministries, Inc. v. Salmon, Case 1:19-cv-01853-SAG, the case challenging the state’s rejection of certain religious schools participating in its BOOST voucher program. The motion asked for litigation to be stalled until after the U.S. Supreme Court rules on certain cases with similar subject matter, which would have potentially delayed this case until July of 2021. Such delay would have been an extreme hardship on the religious schools and families hoping to get vouchers to attend those schools. Thankfully, the Court agreed. The case is now in discovery phase, which will be conducted through October of this year.